1 generally gone further and have enacted provisions sufficiently comprehensive to include all kinds of locations. For example, the Utah statute reads as follows: "In actions respecting mining claims, proof must be admitted of the customs, usages and regulations established and enforced in the district, bar, diggings or camp embracing such claims; and such customs, usages or regulations, when not in conflict with the laws of this state or of the United States, must govern the decision of the action." Similar customs obtain and are recognized by statute in Wisconsin and Missouri. In the latter state, where a license to prospect is given, the terms of which are not given, the statute provides that the same shall be determined by the custom of the district. In the former, in the absence of contract to the contrary, forfeitures for negligent mining, or failure to mine, are controlled by usage and custom. This rule also applies in the interpretation and explanation of mining contracts.3 2 R. S. Mo., 1899, § 8767. 1 R. S. Utah, 1898, § 3521. 3 R. S. Wis., 1898, § 1647. CHAPTER III. DISTRICT RULES BEFORE THE STATUTE. - Enactment of § 73. Miners' meetings - Birth and evolution of the rules. 74 Miners' meetings- Where held — Organization rules - Not open to attack generally. 75. Of the miners' rules-Purposes of reproduction. 76. Of the general nature of the rules - Boundaries of districts-Size of claims and how acquired. 77. Character of the miners and the laws made by them Result of the discovery of gold in California. 78. Consent of the governed - A social compact-Penal provisions. 79. Notice-Boundaries-Work required and other provisions-Forfeiture and for what. 80. Forfeiture, what constitutes - Grounds for. 81. Dips, spurs and angles-Origin of the terms rule. -Source of the apex 82. Alien ownership opposed-Early traces of thought, afterwards crystallized into statute. 83. Miners' regulations and rules recognized by and crystallized into statute. 873. Miners' meetings - Birth and evolution of the rules. While the meeting of the miners of the district in a quasi-legislative capacity, for the purpose of preparing a code of rules for their common guidance, is characteristic of a truly republican institution, a sort of local democracy, yet the fact remains that the custom had its birth in the stannary parliament of Cornwall and Devon.1 The very name given to this legislation: "Miners' rules and customs," "customs of the bar or diggings," "local rules and customs,"2 establish this beyond controversy. Nothing nearly resem 1See ante, § 40. 2 Cal. Code of Civil Proc., § 748; R. S. Utah, 1898. § 3521; Morton v. Solam bo Copper M. Co., 26 Cal. 527; Conger v. Weaver, 6 Cal. 548; Gold Hill Q. M. Co. v. Ish, 5 Oreg. 104; bling it seems to have been elsewhere known so far as our research discloses. § 74. Miners' meetings, where held - Organization Enactment of rules- Not open to attack generally.These meetings were usually held at some public place in the district. If organized generally at the recorder's office, or place where the records were kept. If unorganized, they were held at some public known place, and in either case upon notice posted in several places in the vicinage or district. They were organized by electing a presiding officer; and by-laws, as a whole, were not infrequently prepared and reported by a committee; these included generally all the matters thought necessary or convenient and were adopted by vote. Amendments were made in the manner authorized by the laws themselves, and were usually adopted in the same way as were the originals. But as to the mode of adopting rules or by-laws there was no fixed rule, nor would courts inquire into the mode of adoption. As we have seen, it was sufficient that they existed and were observed.1 Concerning this question it was said: "There is nothing in the point that the mining laws offered in evidence were passed on a different day from that advertised for a meeting of miners. We cannot inquire into the regularity of the modes in which these local legislatures or primary assemblages act; they must be judges of their own proceedings. It is enough that the miners agree whether in public meeting or after due notice upon their local laws, and that these are recognized as the rules of the vicinage, unless some fraud be shown or some other like cause for rejecting the laws."? § 75. Of the miners' rules-Purposes of reproduction. It is foreign to the purposes of this work to give in detail the miners' rules as they existed before the statute. It is 1 See ante, § 30. 2 Gore v. McBrayer, 18 Cal. 582; English v. Johnson, 17 Cal. 107; Roberts v. Wilson, 1 Utah, 292; rather our purpose to reproduce only such as furnish the foundation upon which the present law is builded. The object of this is obvious and is twofold: 1. The evolution of the law is useful if not essential to a correct understanding of its purposes. 2. Decisions were and are now being made under those rules, and their value is enhanced or diminished in proportion to the similarity or dissimilarity of those rules to existing rules or statutes. The general observation may be made in passing, that the miners' rules generally provided for the manner of locating, marking, recording and operating mining claims, as well as the work necessary within a given time to hold them. At first only placer claims were provided for, but gradually the elastic force of necessity enlarged the scope and operation of these laws and rules to lode, lead, ledge or vein claims as well.1 $76. Of the general nature of the rules-Boundaries of districts — Size of claims and how acquired.- To give in detail the exact provisions of the miners' rules would serve no useful purpose, inasmuch as the size of the claims. only conformed in part to the law of 1866, and was radically changed, as we shall see further on, by the law of 1870 and 1872. Our main purpose, in order to demonstrate the value of the early decisions, is merely to indicate that similar provisions to existing law were found in the early miners' rules, and thus to illustrate the decisions as well as to show the matter out of which the statutes and present laws were formed. A succinct statement of the general nature and character of these rules, of the manner of holding claims and working them, and of the mode of dividing into districts, was early made by Commissioner J. Ross Browne, and we take the liberty of reproducing it here: "It is impossible to obtain, within the brief time allowed for this preliminary report, a 1 Yale, Mining Claims and Water Rights, pp. 73–84. complete collection of the mining regulations, and they are so numerous that they would fill a volume of one thousand pages. There are not less than five hundred mining districts in California, two hundred in Nevada, and one hundred each in Arizona, Idaho and Oregon, each with its set of written regulations. The main objects of the regulations are to fix the boundaries of the district, the size of the claims, the manner in which claims shall be marked and recorded, the amount of work which must be done to secure the title, and the circumstances under which the claim is considered abandoned and open to occupation by new claimants. The districts usually do not contain more than one hundred square miles, frequently not more than ten, and there are in places a dozen within a radius of ten miles. In lode mining the claims are usually two hundred feet long on the lode; in placers the size depends on the character of the diggings and the amount of labor necessary to open them. In the hill diggings, where the pay dirt is reached by long tunnels, the claim is usually one hundred feet wide, and reaches to the middle of the hill. Neglect to work a placer claim for ten days in the season when it can be worked is ordinarily considered as an abandonment. The regulations in the different districts are so various, however, that it is impossible to reduce them to a few classes comprehending all their provisions. The states of Nevada and Oregon and the territories of Idaho and Arizona have each adopted statutes in regard to the size and tenure of mining claims; and these statutes, so far as they conflict with the district regulations, probably supersede them, although the act of the last session of congress to legalize the occupation of the mineral lands provides for the issue of patents to only the holders of those lode claims which are occupied and improved according to the local custom or rules of miners in the district where the same are located." 1 1 Min. Resources, 1867, p. 226; Yale, Mining Claims and Water Rights, |